[Federal Register Volume 60, Number 207 (Thursday, October 26, 1995)]
[Rules and Regulations]
[Pages 54812-54814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26592]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[WA8-1-5478a; WA36-1-6951a; FRL-5315-7]


Approval and Promulgation of Implementation Plans: Washington

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: In this action, the Environmental Protection Agency (EPA) 
approves PM-10 contingency measures for Seattle and Kent, Washington. 
At the same time, EPA is providing notice that the conditions required 
under the June 23, 1994 (59 FR 32370), conditional approval of the 
Seattle PM-10 attainment plan have been met.

DATES: This action is effective on December 26, 1995, unless adverse or 
critical comments are received by November 27, 1995. If the effective 
date is delayed, timely notice will be published in the Federal 
Register.

ADDRESSES: Written comments should be addressed to: Montel Livingston, 
SIP Manager, EPA Air & Radiation Branch (AT-082), Docket WA36-1-6951, 
1200 Sixth Avenue, Seattle, Washington 98101.
    Documents which are incorporated by reference are available for 
public inspection at the Air and Radiation Docket and Information 
Center, Environmental Protection Agency, 401 M Street, SW, Washington, 
D.C. 20460. Copies of material submitted to EPA may be examined during 
normal business hours at the following locations: EPA, Region 10, Air & 
Radiation Branch, 1200 Sixth Avenue (AT-082), Seattle, Washington 
98101, and the Washington Department of Ecology, PO Box 47600, Olympia, 
Washington 98504.

FOR FURTHER INFORMATION CONTACT: George Lauderdale, EPA Air & Radiation 
Branch (AT-082), 1200 Sixth Avenue, Seattle, Washington 98101, (206) 
553-6511.

SUPPLEMENTARY INFORMATION:

I. Background

    The Seattle and Kent, Washington areas were designated 
nonattainment for PM-10 and classified as moderate under sections 
107(d)(4)(B) and 188(a) of the Clean Air Act, by operation of law upon 
enactment of the Clean Air Act Amendments of 1990.1 See 56 FR 
56694 (Nov. 6, 1991) (official designation codified at 40 CFR 81.348). 
The air quality planning requirements for moderate PM-10 nonattainment 
areas are set out in subparts 1 and 4 of part D, title I of the Act. 
The EPA has issued a ``General Preamble'' describing EPA's preliminary 
views on how EPA intends to review SIP's and SIP revisions submitted 
under title I of the Act, including those State submittals containing 
moderate PM-10 nonattainment area SIP requirements (see generally 57 FR 
13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992)). Because EPA 
is describing its interpretations here only in broad terms, the reader 
should refer to the General Preamble for a more detailed discussion of 
the interpretations of title I advanced in this proposal and the 
supporting rationale. In this rulemaking action on the Washington 
moderate PM-10 SIP for the Seattle and Kent nonattainment areas, EPA is 
proposing to apply its interpretations, taking into consideration the 
specific factual issues presented. Additional information supporting 
EPA's action on these particular areas is available for inspection at 
the address indicated above.

    \1\  The 1990 Amendments to the Clean Air Act made significant 
changes to the Act. See Pub. L. No. 101-549, 104 Stat. 2399. 
References herein are to the Clean Air Act, as amended (``the 
Act''). The Clean Air Act is codified, as amended, in the U.S. Code 
at 42 U.S.C. 7401, et seq.
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    Those States containing initial moderate PM-10 nonattainment areas 
(those areas designated nonattainment under section 107(d)(4)(B)) were 
required to submit attainment plans by November 15, 1991, with some 
provisions due at a later date. States with initial moderate PM-10 
nonattainment areas were required to submit contingency measures by 
November 15, 1993 which become effective without further action by the 
State or EPA, upon a determination by EPA that the area has failed to 
achieve RFP or to attain the PM-10 NAAQS by the applicable statutory 
deadline (see section 172(c)(9) and 57 FR 13543-44).
    Section 110(k) of the Act sets out provisions governing EPA's 
review of SIP submittals (see 57 FR 13565-13566). Section 110(k)(4) of 
the Act authorizes EPA to conditionally approve a plan revision based 
on a commitment by the State to adopt specific enforceable measures by 
a date certain, but not later than one year after the date of approval 
of the plan revision. EPA would then assess the approvability of the 
submittal after the State fulfilled its commitment. Previous EPA 
actions include approval of the Kent attainment area plan and 
conditional approval of the Seattle attainment area plan.
    EPA conditionally approved the Seattle moderate area plan on June 
23, 1994 (see 59 FR 32370). The conditional approval was based on the 
commitment, contained in the May 11, 1994, SIP submittal, by the 
Washington Department of Ecology (Ecology) to decrease the emission 
limits for point sources contributing to the PM-10 problem. During 
review of the November 15, 1991 SIP submittal for Seattle, EPA 
concluded that the plan needed specific enforceable emission limits for 
several point sources in the area. Emission contributions from those 
sources had been estimated in the plan at the actual level. Those 
actual emissions were unenforceable because the sources could emit 
additional pollution without violating any regulation. Washington's 
regulations in effect set higher emission limits than the facilities 
were actually emitting. Before EPA could fully approve the attainment 
plan, the attainment and three year maintenance demonstrations would 
have to be based on the allowable emissions from the point sources. On 
May 11, 1995, Ecology submitted these new emission limits and 
adequately demonstrated attainment and three year maintenance using the 
new limits. Progress in attaining the PM-10 standards in Seattle has 
been demonstrated by the area not exceeding the PM-10 24-hour health 
standard since 1989. The emission limits were developed, implemented 
and will be enforced by the Puget Sound Air Pollution Authority 
(PSAPCA) through Orders of Approval issued for each source by the 
agency.
    In addition to the enforceable emission limits, Ecology also 
submitted on May 11, 1995 a contingency measure for the Seattle 
nonattainment area. As provided in section 172(c)(9) of the Act, all 
moderate nonattainment area SIP's that demonstrate attainment must 
include contingency measures (see generally 57 FR 13543-44). These 
measures were required to be submitted by November 15, 1993 for the 
initial moderate PM-10 nonattainment areas. These measures must take 
effect without further regulatory action by the State or EPA, upon a 
determination by EPA that the area has failed to make RFP or attain the 
PM-10 NAAQS by the applicable statutory deadline.
    Ecology did not submit a contingency measure for Seattle by the 
November 15, 1993, statutory deadline. EPA sent a letter (dated January 
13, 1994) to the

[[Page 54813]]

Governor of Washington noting the deficiency to submit the contingency 
measure and initiating an 18 month timeframe for the state to correct 
the problem. On May 11, 1995, Ecology submitted the Seattle contingency 
measure. This measure bans the use of all uncertified woodstoves in the 
area where woodstoves are a major contributing factor to any NAAQS 
violations. Implementation of this measure would occur if the area 
fails to attain or maintain the NAAQS for PM-10. The PSAPCA regulation 
which allows implementation of the contingency measure is Regulation I, 
Section 13.07. State law allows this regulation to take effect on or 
after July 1, 1995.
    EPA approved all elements of the Kent, Washington, PM-10 
nonattainment plan that were due on November 15, 1991, in a March 16, 
1993 Federal Register document (see 58 FR 14194). In that approval, EPA 
took no action on the contingency measure element because it was not 
due until November 15, 1993. Ecology made the case in a May 11, 1994, 
letter that the shut down of a major point source, Salmon Bay Steel, 
resulted in significantly more control than was necessary to 
demonstrate attainment. After further discussion with Ecology and 
PSAPCA, EPA has concluded that the contingency measure requirement has 
been met in the Kent area through the attainment and three-year 
maintenance emission reduction plan. The magnitude and permanence of 
the closing of the steel facility reduced the emissions so dramatically 
that EPA thinks it is reasonable for Ecology to include some of the 
actual reductions as early implementation of a contingency measure. 
Actual air quality monitoring in the nonattainment area verifies 
significant improvement to the air quality of the area. Neither the 24-
hour or annual PM-10 NAAQS have been exceeded since 1986. The highest 
24-hour value in the past three years was 92 g/m3. This 
action completes EPA approval of all elements of the Kent PM-10 
attainment plan.

II. This Action

    EPA is taking three separate actions with this notice; approval of 
an uncertified woodstove ban contingency measure for the Seattle, 
Washington PM-10 nonattainment area, approval of the major plant 
closure overcontrol contingency measure element for the Kent, 
Washington PM-10 area, and notice that the conditions have been met for 
the June 23, 1994, conditional approval of the Seattle PM-10 plan which 
includes allowable emission limitations. These actions will complete 
EPA's State Implementation Plan (SIP) attainment area plan approvals 
for both the Kent and Seattle PM-10 nonattainment areas.

III. Administrative Review

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, Part D of the CAA 
do not create any new requirements, but simply approve requirements 
that the state is already imposing. Therefore, because the federal SIP-
approval does not impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected. Moreover, 
due to the nature of the federal-state relationship under the CAA, 
preparation of a regulatory flexibility analysis would constitute 
federal inquiry into the economic reasonableness of state action. The 
CAA forbids EPA to base its actions concerning SIPs on such grounds. 
Union Electric Co. v. U.S.E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 
U.S.C. 7410(a)(2).
    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under Section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
Federal requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.
    The EPA has reviewed this request for revision of the federally-
approved SIP for conformance with the provisions of the 1990 Clean Air 
Act Amendments enacted on November 15, 1990. The EPA has determined 
that this action conforms with those requirements.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to the SIP shall be 
considered separately in light of specific technical, economic and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation.
    The EPA is publishing this action without prior proposal because 
the Agency views this as a noncontroversial amendment and anticipates 
no adverse comments. However, in a separate document in this Federal 
Register publication, the EPA is proposing to approve the SIP revision 
should adverse or critical comments be filed. This action will be 
effective December 26, 1995, unless, by November 27, 1995, adverse or 
critical comments are received.
    If the EPA receives such comments, this action will be withdrawn 
before the effective date by publishing a subsequent document that will 
withdraw the final action. All public comments received will be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. The EPA will not institute a second comment period on 
this action. Any parties interested in commenting on this action should 
do so at this time. If no such comments are received, the public is 
advised that this action will be effective December 26, 1995.
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by December 26, 1995. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 


[[Page 54814]]
review may be filed and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2), 42 U.S.C. 
7607(b)(2)).
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Particulate matter.

    Note: Incorporation by reference of the Implementation Plan for 
the State of Washington was approved by the Director of the Office 
of Federal Register on July 1, 1982.

    Dated: October 2, 1995.
Chuck Clarke,
Regional Administrator.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart WW--Washington

    2. Section 52.2470 is amended by adding paragraph (c) (58) to read 
as follows:


Sec. 52.2470  Identification of plan.

* * * * *
    (c) *  *  *
    (58) On February 21, 1995 and May 11, 1994, WDOE submitted to EPA 
revisions to the Washington SIP addressing the contingency measures for 
the Seattle and Kent PM-10 nonattainment plans.
    (i) Incorporation by reference.
    (A) February 21, 1995 letter from the Washington Department of 
Ecology to EPA Region 10 submitting PSAPCA Section 13.07--Contingency 
Plan, adopted December 8, 1994, as a revision to the Seattle PM-10 
attainment plan and the Washington SIP.
    (B) May 11, 1994 letter from WDOE to EPA Region 10 submitting 
clarifying documentation to the contingency measure for Kent Valley PM-
10 attainment plan.

[FR Doc. 95-26592 Filed 10-25-95; 8:45 am]
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